0120103752
02-10-2011
David A. Kash, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
David A. Kash,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120103752
Agency No. 4J480003610
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's September 3, 2010 final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Complainant, a Part Time Flexible (PTF) City Carrier, Grade 1, Step D, at
the Auburn Hills Branch in Auburn, Michigan and the Pontiac Post Office
in Pontiac, Michigan, alleged that the Agency discriminated against him
on the bases of disability (Deaf) and reprisal for prior protected EEO
activity under Section 501 of the Rehabilitation Act of 1973 when: since
on or about February 25, 2010, he has been subjected to discriminatory
harassment, including but not limited to: his supervisor did not respond
to his text messages; he was treated in a harsh and mean manner; he was
followed around; and his hours were cut.
The record indicates that the Complainant has filed two prior informal EEO
complaints: Case No. 4J-480-0007-08, which was initiated on October 19,
2007, and settled and informally closed on December 4, 2007; and. Case
No. 4J-480-0100-08, which was initiated on August 21, 2008, and settled
and informally closed on September 24, 2008. Both claims alleged
disability discrimination, the first involving a reasonable accommodation,
and the latter involving the allegedly discriminatory issuance of a Letter
of Warning (LOW). Complainant stated that he worked mostly at the Auburn
Hills Branch between February 1, 2010 and March 2, 2010, although on
February 26, 2010, he was sent to the Pontiac-West Bloomfield Station.
He explained that he has suffered from congenital partial deafness since
birth, due to Rubella. He attested that his condition was diagnosed, when
he was 3 years old, as permanent nerve loss, and he wears a hearing aid.
Complainant stated that he cannot hear telephones and he has trouble
understanding telephone conversations. As a reasonable accommodation,
Complainant explained that he had previously requested a cell phone
with texting capability after he was written up for not calling (from
the street) in a timely manner. He stated that he was provided with
a cell phone which he uses to communicate with his supervisors when
there is a problem. Complainant asserted that when he was sent to the
Auburn Hills station and requested the cell phone numbers of supervisors,
no one responded. Complainant also asserted that he had an on-the-job
injury from a fall on October 17, 2007, due to weakened knees and legs,
but his claim for injury was not accepted by the Office of Workers
Compensation Program (OWCP), and he has an appeal pending. He alleged
that his managers knew about this condition, and that from time to time
pain flared in his knees. He claimed that as of February 24, 2010,
he was on limited duty and that he had medical restrictions prohibiting
him from carrying or walking with mail. He averred that he was told by
his managers that they did not have a copy of the restrictions from his
doctor. The record includes a Duty Status Report dated February 23, 2009,
that limited Complainant to intermittent standing 2 to 3 hours per day,
intermittent walking 1 hour per day, no climbing, and no kneeling.
Complainant also alleged that other PTFs and Transitional Employees
(TEs) received 50 to 55 hours a week at the Pontiac Main Post Office,
during the week of February 22, 2010, when at the same time his hours
were cut to 37.21. He identified February 25, 2010 and March 2, 2010 as
dates when work was available but wasn't assigned to him. Complainant
stated that on March 1, a supervisor yelled at him that overnight mail
had to be cased first and that when he was done delivering his route,
he was to be sent home early. Complainant indicated that he was also
aware of a comparator PTF City Carrier, who worked at Auburn Hills on
limited duty when he was there, started work at 7:30 a.m., while at the
same time he was told to start at 9:30 a.m. on several occasions.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Because Complainant
did not respond, the Agency issued a final decision in this matter.
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie case,
management had recited legitimate, nondiscriminatory reasons for its
actions. Management stated that during the period where Complainant
is complaining he received fewer work tours than PTFs or TEs working in
Pontiac, most of the available work required standing for 4 to 6 hours,
but Complainant could only stand for 2 to 3 hours intermittently,
because of his light duty work restrictions. Management averred
that if PTFs or TEs received more tours than Complainant during this
period, it was because they had no medical restrictions and the work
required more standing than Complainant was allowed to do under his
medical restrictions. With regard to allowing a comparator to begin
work at 7:30 a.m. while Complainant was required to start at 9:30 a.m.,
management explained that a business decision was made to use Complainant
to deliver mail to boxes, versus using him earlier in the morning to
case mail on unfamiliar routes. The comparator was therefore allowed
to start work at 7:30 a.m. because she did not have the restrictions
that Complainant had. Her only restriction was to have Mondays off.
The mail delivery to which Complainant was assigned began at 9:30 a.m.
As for not assigning certain work to Complainant on February 25 and
March 2, 2010, management stated that this was because the work did not
fit Complainant's light duty medical restrictions. The Agency's actions
were in accord with Article 13.4.B of the National Agreement between the
Postal Service and the National Letter Carriers Association (NALC) which
states that. "Light duty assignments may be established from part-time
hours, to consist of 8 hours or less in a service day and 40 hours or
less in a service week. The establishment of such assignment does not
guarantee any tours to a part-time flexible employee."
Concerning Complainant's claim of management hostility toward him,
managers involved denied that they raised their voices in anger to
Complainant, followed him around looking over his shoulder, or nitpicked
about his monthly doctor's appointments. Management denied working
Complainant outside of his medical restrictions. Furthermore, the Agency
noted, even if Complainant was asked to work outside of his restrictions,
it never happened because Complainant persistently brought undelivered
mail back from his route and refused to go back out and deliver the mail
when he was told to do so. As for the issue of Complainant not being
able to text his managers because he did not have their phone numbers,
the Agency stated that Complainant's text messages were retrieved and
were responded to.
In conclusion, the Agency found that the events of which Complainant
complains, either individually or collectively fail to rise to the
level of unlawful harassment prohibited by the Rehabilitation Act.
Most importantly, there is no evidence that any of the actions or
decisions of agency management were motivated by unlawful reasons.
Complainant failed to establish that any of management's reasons for its
actions were pretextual or unworthy of belief. Complainant failed to
establish discrimination under either the theory of disparate treatment
or unlawful harassment. Complainant proffers no statement on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on his statutorily protected class; (4) the harassment affected
a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on his statutorily protected
classes, management continuously subjected him to a hostile work
environment. However, we find that Complainant has not shown that he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving his protected classes, or the harassment complained of
was based on his statutorily protected classes. Further, Complainant
has not shown that the purported harassment had the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. While Complainant
has cited various incidents where agency management took actions that
were either adverse or disruptive to him, we find that Complainant fails
to show that these incidents were as a result of unlawful discrimination.
To the extent complainant is alleging disparate treatment with respect
to his claims, even assuming Complainant is a person with a disability,
he has not shown that the agency's reasons for its actions were a pretext
for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party. Failure to file within the time
period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely
filing of the request. Any supporting documentation must be submitted
with your request for reconsideration. The Commission will consider
requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official Agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court
that the Court appoint an attorney to represent you and that the Court
also permit you to file the action without payment of fees, costs,
or other security. See Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request
is within the sole discretion of the Court. Filing a request for an
attorney with the Court does not extend your time in which to file
a civil action. Both the request and the civil action must be filed
within the time limits as stated in the paragraph above ("Right to File
A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 10, 2011
__________________
Date
2
0120103752
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103752